Looking for Clues in All the Wrong Places: Why the D.A.'s Search of Michael Jackson's P.I.'s Office Was Unlawful,
And What the Court Should Do About That

By JONNA M. SPILBOR

Tuesday, Jul. 20, 2004

Tom Sneddon, Santa Barbara's top prosecutor, has ended up a witness in a case which he himself is litigating. In what's being touted as "an unusual move," the judge in the Michael Jackson case has ordered Sneddon to testify at an upcoming hearing slated for next month.

In November 2003 -- just hours before Michael Jackson was arrested on charges of committing lewd acts upon a child -- sheriff's deputies raided the Beverly Hills offices of private investigator Bradley Miller. Miller was working closely with Jackson's then-attorney Mark Geragos on the Jackson case.

The subject of the hearing centers around whether Sneddon - who authorized the search warrant application, as well as the subsequent search, and reportedly conducted his own personal surveillance on Miller's office building a couple of weeks prior - knew that Miller had been hired to assist in Jackson's defense. Superior Court Judge Rodney Melville has explained that the court is "very concerned about the factual issue, whether or not the district attorney...knew that Mr. Miller had been retained by Geragos."

If Sneddon did know, then why were obvious attorney-client privilege issues ignored? After all, Sneddon was authorizing a search of an employee of the defendant's attorney. Imagine if he'd tried, instead, to ransack the office of one of Geragos' paralegals! The illegality would be even more plain.

In this column, I will discuss why, exactly, the search of the private investigator's premises was unlawful, and what the court should do about it.

California Law on Attorney-Client Privilege Can Extend to P.I.s

The attorney-client privilege preserves the confidentiality of communications between an attorney and his client. Its purpose is to encourage the honest, unfettered exchange of information between attorney and client during the course of legal representation.

In California, Evidence Code sections 950 - 954 define the attorney-client privilege broadly. Under California law, the privilege encompasses virtually any information -- whether oral, written, photographic or otherwise -- conveyed by a client to his attorney during the course of their professional relationship.

In addition, Evidence Code section 954 makes clear that the privilege applies not only to lawyers but to those third parties "who are present to further the interest of the client in the consultation, or to accomplish the purpose for which the lawyer is consulted." (Emphasis added.) These third parties are best thought of as "necessary agents" - the persons the attorney needs to consult with to do his job.

Typically, such agents include experts, paralegals, secretaries, and, as in this case, private investigators retained by a party's counsel. Thus, once it has been established that the investigator was retained by legal counsel to represent a suspect, the investigator cannot be forced to reveal the product of his investigation.

The law in this regard is quite clear. So what was Sneddon thinking when he authorized the warrant application relating to Bradley Miller's offices?

The Prosecution's Claim of Ignorance Of the Geragos-Miller Link Is Implausible

Thus far, the prosecution is claiming simple ignorance: Sneddon says he did not know of Miller's relationship to Jackson's defense camp.

But that seems highly improbable at best. After all, consider what the prosecution did know at the time - both specifically about Geragos, Jackson and Miller, and more generally about the case.

First, let's look at the specific knowledge the prosecution had: The prosecution knew Geragos represented Jackson. (Indeed, they were dialoguing with Geragos in an effort to negotiate Jackson's voluntary surrender before literally busting down the door to Miller's office.) It plainly knew Jackson or his attorney had hired Miller, or why search his office in the first place? It knew enough about Miller's relationship with Jackson to include an affidavit of probable cause sufficient to convince a judge to issue a search warrant.

Second, let's look at the general knowledge the prosecution had. Remember, this search happened just hours before Jackson's arrest - and the arrest warrant was issued before the searches. This was not a prosecutor's office acting in the initial investigation of a case - it was an office on the verge of arresting the defendant. Its investigation, it seems, was mostly or entirely finished. Yet the Miller/Geragos link had never been revealed?

Also, this search apparently was one of three separate, simultaneous searches between Santa Barbara and Beverly Hills, all at precisely the same moment in time. The Neverland Ranch search alone involved seventy police and prosecutors. With such a knowledgeable battalion working on the case, is it possible it occurred to not a single officer or prosecutor that Jackson's lawyer and his P.I. were working together?

For all these reasons, Sneddon's claim that the Geragos/Miller relationship was news to him and his office is highly incredible.

A Search With An Accompanying Special Master Would Have Been Legal

Ironically, prosecutors in the case could have conducted a legal search of Miller's office. California Penal Code section 1524 is not a wholesale prohibition on the DA's ability to search a premises where the privilege is likely to be asserted. Instead, it allows such a search, but sets out a specific procedure to be followed:

When the warrant is issued, the court must appoint a "special master" - that is, an independent person not associated with police or prosecutors - to oversee service of the warrant on the person in possession of the premises (here, Miller). Then, if that person (here, Miller) states that documents are privileged, they must be sealed by the special master and taken to court for a hearing.

Why didn't Sneddon play by these rules? It's hard to say for sure, but it's possible that the special master procedure was intentionally ignored because it would have undermined Sneddon's "sneak attack" strategy.

Sneddon plainly saw an advantage in ensuring that the three searches were done simultaneously at different locations, without advance notice to Jackson's defense team. And of course, the defense couldn't be present at three locations at the same time, to observe.

If the Court Deems the P.I. Office Search Illegal, What Sanction Should It Impose?

First and foremost - and assuming the search of Miller's office revealed evidence useful to the prosecution - the judge has the power to deem the illegally seized evidence from Miller's office inadmissible as "fruit of the poisonous tree." But here, the judge should do more.

There is a fine line between zealous prosecution and prosecutorial misconduct - and it's a line this district attorney may be dangerously close to crossing. As prior columns for this site by myself and others have discussed, Sneddon's apparent vendetta against Jackson has caused him to act improperly in the past, as well.

Suppressing evidence is not enough of a sanction when serious prosecutorial misconduct is at issue - as seems to be the case here. Only additional sanctions will properly punish and deter.

Unfortunately, however our system of justice is not exactly set up to mete out punishment to those who are supposed to be trusted officers of the court. Imposing fines against the attorneys themselves is always an option. Another possible (though rarely-used) remedy for prosecutorial misconduct, as I discussed in a prior column, would be to recuse the individual offending attorney -- or the entire District Attorney's office.

This remedy can be proper if the court is convinced that the district attorney's office has employed its discretionary powers to deprive the defendant of a fair trial. Did that happen here? Certainly, there is a strong argument that it did - based on the blatant violation of warrant procedures and the resulting seizure of potentially privileged material.

Finally, in the most serious of cases, there is but one remedy that both ensures a just resolution for an accused, and punishes prosecutors who fail to play by the rules: Dismissal of the charges. But it does so at a potentially great cost to the victim when the defendant is indeed guilty of the crime charged. Here, however, the evidence of the defendant's guilt is tenuous at best - and what evidence exists, may be less than credible.

In this case, then, dismissal might not be too extreme a sanction. The critical import, however, is that suppression of evidence is not enough when misconduct is as grave as occurred here.


Jonna M. Spilbor is a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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